Andrew W. Billings v. Smith O'Brien

Andrew W. Billings v. Smith O’Brien. (Decided in May, 1873.) Defendant, a public officer, verbally assigned a share of his pay to accrue for a certain month (more than fifty dollars) to plaintiff, but subsequently collected the whole, and only paid over to plaintiff a part of the share he had assigned. In an action by plaintiff against defendant for the conversion of money received in a fiduciary capacity, Held, 1. That the sale was void under the statute of frauds. 2. That were it otherwise, as the assignment was only of a share, it would convey to plaintiff only a joint interest, which would give him a right to share pro rata in the moneys received by defendant, but would not entitle him to maintain an action for conversion. The sale by a public officer of his salary, as such, before it is earned, is void as against public policy. Reported in full in 14 Abb. Pr. U. S. 238; s. c. 45 How. Pr. 392. Appeal by defendant from a judgment of the Third District Court. George F. and J. C. Julius Langbein, for appellant. Samuel Jones and Howard Ellis, for respondent. [MAJORITY] Opinion of the court by Eobinson, J. Judgment reversed. Present Daly, Oh. J., Robinson and Larrehobe, JJ.